31st murderer executed in U.S. in 2007
1088th murderer executed in U.S. since 1976
19th murderer executed in Texas in 2007
398th murderer executed in Texas since 1976

Since 1976

Date of Execution

State

Method

Murderer(Race/Sex/Age at Murder-Execution)

Date ofBirth

Victim(s)(Race/Sex/Age at Murder)

Date ofMurder

Method ofMurder

Relationshipto Murderer

Date ofSentence

1088

07-24-07

TX

Lethal Injection

Lonnie Earl Johnson

B / M / 27 - 44

03-19-63

Gunar Nelson FulkW / M / 16Leroy McCaffrey Jr.W / M / 17

08-15-90

Handgun

None

11-17-94

Summary:
In the early morning hours Johnson approached Fulk and McCaffrey at a Tomball convenience store and asked the two teens for a ride. The store clerk saw Fulk and McCaffrey leave in Fulk’s pickup, with Johnson seated between them. When they were about 4 miles from the store, Johnson forced the pair out of the vehicle at gunpoint and shot each of them several times. Leroy "Punkin" McCaffrey ran away from the scene but Johnson chased him for a distance of about 350 feet before catching and killing him. Johnson then stole Sean's truck and drove to Austin to see his girlfriend. He told her that he had killed two boys. He later dumped the stolen truck in San Marcos, Texas, and sold the murder weapon for cocaine. He was arrested after two weeks and he claimed that he killed the boys in self-defense. The bodies of Fulk and McCaffrey were found beside a rural road. Fulk had been shot four times, and McCaffrey twice.

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Lonnie Earl Johnson, who is scheduled to be executed after 6 p.m. Tuesday, July 24, 2007.

Johnson was sentenced to death for the robbery and slayings of two teenagers, Gunar Nelson “Sean” Fulk and Leroy McCaffrey, Jr.

FACTS OF THE CRIME

In the early morning hours of August 15, 1990, Fulk and McCaffrey approached Lonnie Johnson at a Tomball convenience store. Johnson asked the two teens for a ride.
The store clerk saw Fulk and McCaffrey leave in Fulk’s pickup, with Johnson seated between them. Later that morning, motorists found the bodies of Fulk and McCaffrey beside a rural road. Fulk had been shot four times, and McCaffrey twice.

Investigators later determined that Johnson shot Fulk and McCaffrey, then drove the pickup to Austin to visit his girlfriend. Johnson abandoned the truck in a restaurant parking lot in San Marcos. About two weeks later, on August 31, Johnson was arrested in Austin. He admitted shooting the two teens.

At the punishment phase of his trial, evidence was introduced that Johnson had been sentenced to a year’s probation for misdemeanor assault on a female relative. And when he was seventeen, he punched his teenage girlfriend in the face when she spoke to another man, and he struck her with a brick on another occasion.

Another girlfriend testified that Johnson struck her in the face, and stole her car.

A friend of Johnson’s testified that on a road trip he and Johnson had taken, Johnson on two separate occasions brandished a handgun and stated his intention to kill two individuals, one a college kid at a convenience store, the other a passing motorist.

While in Harris County Jail awaiting trial in the capital murders, Johnson hit a fellow inmate during an argument over a newspaper, fought with another inmate over cleaning supplies, struck an inmate with a writing pen, piercing the inmate’s lip, and broke a broom handle over the head of another inmate.

HUNTSVILLE, Texas — Condemned inmate Lonnie Earl Johnson had told prison officials he was sure he'd be spared the executioner.
"He was pretty confident his appeals would keep him alive," said Texas Department of Criminal Justice spokesman Jason Clark, who saw Johnson when he arrived at the death house.

Johnson got about an extra 30 minutes Tuesday evening while the U.S. Supreme Court considered his final appeal.
Then the appeal was rejected, and the 44-year-old Johnson became the 19th Texas prisoner put to death this year.

Johnson didn't deny killing Sean Fulk Schulz, 16, and his friend Leroy McCaffrey Jr., 17, and taking their pickup truck, but insisted the slayings 17 years ago outside Tomball in northwest Harris County were in self-defense after the pair pulled a gun and made racial threats against him. Johnson was black, his two victims white.
"It's been a joy and a blessing," he told a friend who watched through a window in the death chamber. "Give everybody my regards and my love. I'll see you in eternity."
Eight minutes later, he was pronounced dead.

Six relatives of his victims, including each of their mothers, watched through another window but Johnson never looked at them. They declined to speak with reporters following the lethal injection.
"We're being punished," Chris Schulz, whose son was one of the slain teens, said earlier. "We're going through our own prison sentence here. We're going to go through it all our lives.
"All I can do for him is to go to his grave and make sure he can be remembered ... If it wasn't for the victims, there wouldn't be an execution. People need to remember that."

Lawyers for Johnson had contended Harris County prosecutors withheld evidence favorable to him and jurors who decided he should die never heard about the racial slurs that he said led to the shootings.
State lawyers denied the allegations.
The 5th U.S. Circuit Court of Appeals earlier Tuesday afternoon also had dismissed Johnson's appeal.
"Johnson's claims are too tenuous," the appeals court said. "Although Johnson alleges that the two victims were racist, he makes no such showing."

Johnson contended the teens offered him a ride home from a convenience store in Tomball and he accepted. During the ride, Johnson said they pulled a gun on him and threatened him. He said he when he wrestled with the pair to grab the weapon, they were shot.

The bodies of McCaffrey, known as "Punkin," and Schulz, known to his family and friends as "Bubba," were spotted the next morning by a motorist. Johnson acknowledged taking their pickup truck and driving to Austin to see his girlfriend, who worked at a topless club. He traded the gun to buy some drugs, he said.
He was arrested about two weeks later in Austin.

McCaffrey and Schultz attended Magnolia High School in Montgomery County. The night of Aug. 15, 1990, McCaffrey met his friend getting off work as a grocery store stocker, and the pair stopped at the convenience store to see a girl they knew. According to the store clerk, Johnson said he needed a lift because his car had broken down.
Johnson said from death row he was out jogging and had no car. Prosecutors said the story about the disabled car was a ruse.

"What I got wasn't justice," Johnson said last week from death row. "I feel like I was betrayed."
Johnson had no previous prison record, but evidence at trial indicated a history of aggressive behavior, including fights with other inmates at the Harris County Jail while awaiting trial.

Death penalty opponents noted Johnson was the 100th person executed after being given a death sentence by a Harris County jury. The total for the county is more than any other state except Texas, where Johnson became the 398th convicted killer to receive lethal injection since the state resumed capital punishment in 1982.
"A grim milestone for a system that is costly, racially biased and may have put innocent men to death," said Jared Feuer, southern regional director for the human rights group Amnesty International, which opposes capital punishment in all instances.

The next Texas inmate scheduled to die is Kenneth Parr, convicted of the January 1998 rape-slaying of Linda Malek, 28, at her Matagorda County home. The Aug. 15 punishment is one of five lethal injections set for the month in Huntsville.

HUNTSVILLE, Texas – Convicted murderer Lonnie Earl Johnson was executed Tuesday evening for the fatal shootings of two Harris County teenagers 17 years ago.
Mr. Johnson expressed love to a friend. "It's been a joy and a blessing. Give everybody my regards. I love you, and I'll see you in eternity," he said in a final statement. "Father, take me home. I'm gone, baby. I'm ready to go."

He never looked at six relatives of the victims – including the mothers of Sean Fulk Schulz, 16, and Leroy McCaffrey Jr., 17 – who witnessed the execution.
He was pronounced dead at 6:44 p.m., eight minutes after the lethal drugs began to flow.

Mr. Johnson, 44, didn't deny killing the youths and taking their pickup in the 1990 incident, but he had insisted the slayings were in self-defense after the pair pulled a gun and made racial threats against him. Mr. Johnson is black, his two victims white.

The execution was the 19th this year in Texas. Death penalty opponents said he was the 100th person executed after being given a death sentence by a Harris County jury. That's more than any state except Texas, which has executed 398 convicted killers since resuming capital punishment in 1982.

Lonnie Earl Johnson, 44, was executed by lethal injection on 24 July 2007 in Huntsville, Texas for the murder and robbery of two teenage boys.

On 15 August 1990, Johnson, then 27, approached Leroy "Punkin" McCaffrey, 17, and Gunar "Sean" Fulk, who was also known as "Bubba," 16, at a convenience store in Tomball in north Harris County. Johnson asked the boys to give him a ride, and they agreed. The boys' bodies were found later that morning on the side of the road, about four miles away. Fulk was shot three times in the head and once in the chest. McCaffrey was found entangled in a fence about 350 feet away. His spinal cord was severed by a single gunshot. A knife was in his hand.

Following the killings, Johnson stole Fulk's truck and drove to Austin to visit his girlfriend. He later abandoned the truck in San Marcos, between Austin and San Antonio. He traded the gun used in the killings for cocaine. He was arrested in Austin on 29 August. At the time of his arrest, Johnson claimed that he killed the youths in self-defense. He maintained this position throughout his trial and appeals.

Prosecutors said that Johnson pulled the gun and forced the boys out of the pickup. He shot Fulk multiple times, but McCaffrey was able to run away. Johnson chased him and caught up with him as he tried to make his way through a fence, then shot him.

Johnson had a history of violent behavior. At age 17, he punched his girlfriend in the face on one occasion, and struck her with a brick on another occasion. Another girlfriend testified that he struck her in the face and stole her car. At the time of the capital murder, he was on probation for a misdemeanor conviction for assaulting a female relative. He also had previous convictions for burglary and larceny. While in jail awaiting his capital murder trial, Johnson assaulted fellow inmates on three separate occasions: hitting one, striking another in the lip with a pen, and breaking a broom handle on another one's head.

A jury convicted Johnson of capital murder in November 1994 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in April 1997. All of his subsequent appeals in state and federal court were denied.

"I am innocent by reason of self-defense," Johnson said in an interview from death row the week before his execution. "The only difference between me and James Byrd Jr. is that I lived," he said. Byrd was a black man who was dragged to death behind a pickup truck in Jasper County in 1998. Juries found three white men guilty of capital murder in Byrd's killing. Two were sent to death row, and the third was given a life sentence.

Johnson said that after he got in the pickup, McCaffrey and Fulk drove him to a remote location, where they forced him from the truck at gunpoint, urinated on him, and threatened to kill him. When the teens relaxed their guard, Johnson said, he wrestled with the pair to grab the pistol, and they were shot. "You do what you have to do," Johnson said. "If I could have run, I'd have done that."

He admitted stealing the pickup truck and trading the gun for drugs after the killings. "I did a few knucklehead things. When things like this are going on, you're not going to think clearly. I was not thinking clearly."
Johnson also said that the assaults he committed in the Harris County Jail were for his own safety.

Johnson's execution was delayed for about 30 minutes as the U.S. Supreme Court considered his final appeal. In his last statement, Johnson expressed love to his friend, Carrie Christensen, who watched from an adjacent room. He did not acknowledge his victims' relatives, who were watching from another room. The lethal injection was started, and he was pronounced dead at 6:30 p.m.
"A beautiful soul was killed today," Christensen said after the execution. "His only crime was to defend himself against racist aggressors." Both of the victims' mothers denied that their children were racists.

Johnson was the 100th prisoner from Harris County to be executed since capital punishment resumed in 1982 following a nationwide moratorium. The occasion was marked by about a half-dozen anti-death-penalty protestors, who stood on the sidewalk outside District Attorney Chuck Rosenthal's home for about an hour Tuesday evening.

Lonnie Earl Johnson was convicted and sentenced to death for the double murders of two teenage boys. Johnson approached the boys outside of a convenience store in Tomball, a small suburb northwest of Houston, and asked for a ride. They agreed, but when they were about 4 miles from the store, Johnson forced the pair out of the vehicle at gunpoint and shot each of them several times. Leroy "Punkin" McCaffrey ran away from the scene but Johnson chased him for a distance of about 350 feet before catching and killing him. Johnson then stole Sean's truck and drove to Austin to see his girlfriend. He told her that he had killed two boys. He later dumped the stolen truck in San Marcos, Texas, and sold the murder weapon for cocaine. He was arrested after two weeks and he claimed that he killed the boys in self-defense.

Chris Schultz and Laura McCaffrey are the boys' mothers and they were outraged when they found a web page dedicated to their sons' killer. The mothers said Johnson is still victimizing their sons from his cell on death row. Chris Schultz, mother of Sean Fulk, told a local Houston reporter, "When something like this comes up, you start thinking of all the horrible things they had to go through." Punkin McCaffrey's mom, Laura agreed. "Then when you read all that, you start re-hashing it all in your mind, it brings it all back to you. And it hurts." Johnson's web page says that the women's sons were racists, and says he was simply fighting his own "lynching." Chris Schultz said of the web site, "He's being allowed to say anything about these kids."

" This is the end of the ride for you' Nigger.' When the truck stopped, he was forced out onto the
ground and the 2 teenagers kicked him in the head and stomped on his back, all the time laughing
and saying, 'Nigger you gonna die. I hate Niggers. We're gonna cut you up.' When he was ordered,
'Get your black Nigger arse up," Lonnie got up slowly, and then made a grab for the guy holding a gun.
He said he was mad with fear and rage and struggled against this teenager who was bigger than him.
The smaller youth jumped on Lonnie's back. The gun went off. "The big guy falls. I have the pistol now. The other guy comes at me with a knife. So I pull the trigger."

LONNIE EARL JOHNSON , an Afro-American born in Texas in 1963, is under sentence of death by the State of Texas. He and I have been pen friends since early 1995, but only recently has he written about the realities of living on Death Row. Infuriated when the American media portrayed it as a hotel - with murderers living in luxury at taxpayers' expense - he wrote an insider's view:

Lonnie was born in Houston. His family was poor but both parents were employed. He graduated from high school and went to college. Tall and athletic, he was a football star, but dropped out because his mother needed financial support. In 1990. as a 27-year-old with a son and a daughter, he was working in his small landscaping business by day and training by night to get back into football. He wrote that he was out jogging late one hot August night when he met 2 teenagers, complete strangers who offered him a lift home in their truck. Despite the racism of the area he felt safe with them because of their youth.

He told me that when he questioned the route they were taking, he suddenly felt a gun pressed into the side of his head and heard 'This is the end of the ride for you' Nigger.' When the truck stopped, he was forced out onto the ground and the 2 teenagers kicked him in the head and stomped on his back, all the time laughing and saying, 'Nigger you gonna die. I hate Niggers. We're gonna cut you up.'

When he was ordered, 'Get your black Nigger arse up," Lonnie got up slowly, and then made a grab for the guy holding a gun. He said he was mad with fear and rage and struggled against this teenager who was bigger than him. The smaller youth jumped on Lonnie's back. The gun went off. "The big guy falls.
I have the pistol now. The other guy comes at me with a knife. So I pull the trigger."

Two weeks later he was arrested. He describes the experience as like 'having someone stick a thousand knives in my heart.' He said that until then he hadn't realized that his assailants had died. One of them had been found still clutching a knife with a 20 cm blade.
He strongly maintains that he acted in self defense; that he had no weapon; that one teenager had a gun and the other a knife 'If you 'd been in my situation,' he asked, 'what would you have done?'

Lonnie claims that he spent 4 1/2 years in jail in Houston before his case came to and that his state appointed (legal aid) attorney visited him only twice in all that time. On one of those occasions it was to offer him a deal - to plead guilty and receive a 60 year sentence. Not surprisingly he refused. Later he was offered a 50 year sentence and refused, saying 'Why should I do all that time when I'm innocent?'

He wrote, 'My family and friends were in court every day. Everyone expected me to be acquitted. But my attorney didn't call any witness on my behalf. The jury heard only the prosecution side. Because of this I had a gut feeling I'd be found guilty but I tried to stay positive. I kept saying to myself, "they can free me. "
I didn't take the stand. I wanted to, but my attorney said ft was better not to.

'The verdict was read out. Found guilty of capital murder - I was totally devastated. Numb and angry at the same time. Angry because this was the justice system I had been taught to believe in. The government I'd voted for. And here it was, condemning me to death... I was allowed to see my mother
and father, one at a time, after the verdict I came to Death Row in January 95.'

New laws have recently cut the period during which appeals may be lodged, and Lonnie's time limit is almost up. Understandably after his experience with his trial lawyer, he doesn't want another state appointed attorney to handle his appeal, saying that they are employees of the justice system that has condemned him - and he has no evidence that he would be properly represented. He has had an interview with a private Appellant Attorney who has achieved the release of other Death Row prisoners on appeals, and this man will take his case if Lonnie can raise $75, 000 for the fees. It is an impossibly large sum for a family that has always been poor.

But Lonnie keeps up his hope through days of what would seem demoralizing sameness, deadening predictability. In some letters he rages against the injustice of his conviction and the racial hatred he has always lived wit, but says, "I can do now is stay and be real with myself and others... I keep in shape with push-ups, and mentally, physically and spiritually I'm the best in my entire life. My routine is getting up at 2.30 a.m. to eat breakfast, saying my prayers, and if I have some very important letters to answer I turn my radio on, brush my teeth and get busy while irs nice and calm. Or just sit and listen to the birds sing outside my window, thinking about my children. Read the Holy Koran or law cases, write more letters, pray, eat, go outside for 2 hours, watch a little TV, eat, read, pray, write a few more letters, and that's the whole day. Very exciting, huh?'

He wrote in March '97, 'My mother came to visit me, bringing my son and daughter. The visit was very very emotional because my friend Barefield's family were there too. They were spending their last hours, minutes and seconds with him before his execution. But as I was trying to help them keep strong, my mother started to cry. It really hurts me inside to see my mother cry like that and there's nothing I can do. My son and I tried to comfort her, and I gave her encouraging words that if we work hard we can prevent this awful thing from happening to me. Barefield went to his death protesting his innocence. In fact it was his brother who had committed the murder.'

'Letters help me mentally, keeping my mind out of this crazy place for a while.
I really enjoy the poems you send and look forward to reading many many more. Henley's poem stuck in my mind. Very strong and inspiring I say it as I walk. "I thank whatever gods may be/ For my unconquerable soul .. . In the fell clutch of circumstance / I have not winced nor cried aloud / Under the bludgeonings of chance/ My head is bloody, but unbowed. "

But sadly - for a man on Death Row, with no money and no influence - courage may not be enough to save his life.

Friends of Lonnie's have asked me for more background information, so I went back through letters and came up with the following, some of which may interest you also. I don't know whether you know that Lonnie has two children - a daughter Carleshia,15, who lives with her mother. Son Damian Earl aged 16 lives with his mother.
Lonnie says it was a past girl-friend who told the police about him and the shooting. He said it was revenge. 'If can't have you, no one else can.' She told the police he killed the teenagers because they owed him money for drugs. He denies any connection with drugs, either as a user or a dealer.

Lonnie's family was poor but both parents worked. Mother was housekeeper to a family. Father worked in a racing stable. There's one brother - older than L. I don't know where he is. but I understand he is not supportive of L at present. As children they spent a lot of time with their grandfather because of parents working. Mother is a strong woman & great influence on L. She is aged 55 and is a Christian - as I think L was until he became a Muslim in prison. He had not been to prison before.

Landscape business was just Lonnie and one other man. He didn't have any training -just picked up garden knowledge from watching mother & grandmother.
Lonnie makes jewelry boxes. I don't know what sort or how many. He asked me if I could help him by selling them. Can't be done from Australia because of taxation rules for non-residents.

He lists his interests as his children, nature, animals, training bull terriers & horses, crafts, ancient civilizations, reading, arts. Doesn't watch much TV.
He is 6 ft tall & weighs 225 lbs.Lonnie wrote, "I know only the strong survive,
& if you don't stay strong in this situation, then you're executed mentally long before it takes place physically. You can believe I will stay strong in every area possible because it's not over until it's over & I will be fighting every step of the way.'

Pen Pal Request:

Hello! My name is Lonnie Earl Johnson, a 36 year old african american male, currently imprisoned on death row, in the state of Texas, and I am very interested in gaining correspondence from people all over the world.

I'm also a member of the Anthroposphical Society in America. I can understand the reluctance of people to get involved with prisoners on death row, for the emotional baggage is very difficult for everyday people to deal with, but I do invite all that are willing to write me.

Some of my interests are reading, writing, building hand made craft items, studying case law, exercising my body, mind and soul, and listening to my radio. I'm the father of 2 beautiful children that I love with all my heart and soul. I'm extremely proud of them and the way they have stayed focused on their education through this tragic ordeal for us all. My case is still in the state courts, but I can use help with my legal issues such as investigators and adequate attorneys, because I did not get a fair trial. Nevertheless I would still like to hear from you and please enclose a photo.

I would like to thank you for taking the time to read my letter to you, and for your time and assistance in the above matter! Your help will be greatly appreciated! Yours sincerely, Lonnie Johnson

Lonnie Johnson is scheduled to be executed in Texas on 24 July. He was
sentenced to death in 1994 for the murder of two white teenagers in 1990. He
has consistently maintained that he acted in self-defence, and an appeal newly
filed on his behalf alleges that the prosecution withheld evidence that
supported his claim.

The bodies of Gunar Nelson Fulk, aged 16, and Leroy McCaffrey, aged 17, the
latter with a knife in his hand, were found near a rural road in Tomball in
Harris County, eastern Texas, on 15 August 1990. Both had been shot. Police
interviewed a woman, Tammy Durham, who said that she had asked the teenagers to
come to the store where she worked after she saw a black man, wearing cut-off
jeans and a dirty shirt and carrying a rolled up newspaper, acting suspiciously
near the store. After the teenagers arrived, she saw them approach a black man
who was using a payphone outside the store and she said they left with him in
their vehicle, after asking for a can of petrol.

The police identified Lonnie Johnson, a 27-year-old man with no criminal
record, as a suspect. They obtained a statement from his girlfriend who said
that he had arrived at her hotel room in the city of Austin in Gunar Fulk’s
vehicle in the early hours of 16 August 1990, and said that he had shot the two
teenagers. They subsequently took Lonnie Johnson into custody, without a
warrant, and obtained a statement which stated that he had acted in
self-defence after a gun was pulled on him and that he had not known the two
teenagers prior to that evening.

Lonnie Johnson was charged with capital murder. The defence lawyer sought to
have Lonnie Johnson’s police statement suppressed on the grounds that it was
the product of an unlawful arrest. The trial judge agreed and ruled that the
statement was not admissible. However, the state appealed and a higher court
overturned the trial judge’s ruling. The trial continued in September 1994.
According to the appeal just filed, at the trial the prosecution "seemed to
argue that either Mr Johnson did not know the men and feigned car trouble, or
the men knew Mr Johnson in the context of drug dealing. The state argued that
Mr Johnson either shot the men in order to steal Fulk’s truck, or shot the men
over money owed for a drug debt." Although Tammy Durham was unable to
positively identify Lonnie Johnson, the prosecution argued that he was the man
whom she had seen and suggested that he had been carrying a gun wrapped in the
newspaper. Johnson was found guilty of capital murder and after the prosecution
produced numerous witnesses to testify that the defendant was violent, had a
bad temper, and hated whites, he was sentenced to death.

After the trial, one of the witnesses who had testified in support of the
prosecution’s argument that Lonnie Johnson would pose a future danger to
society if allowed to live – a prerequisite for a death sentence in Texas –
recanted his testimony. In an affidavit, the witness said that: "The statements
that I made at trial about Lonnie displaying a handgun and wanting to kill a
motorist were all false. These were statements made to make the District
Attorney happy, so she would secure my early release from prison". However, the
courts have ruled that this witness had not been promised anything in return
for testifying, and that his testimony had not affected the outcome of the
trial.

According to the appeal just filed in the state courts, Lonnie Johnson
continues to maintain that he had been out running on the evening of the
shooting. At the store in which Tammy Durham was working, he had accepted an
offer of a lift from the two teenagers. He maintains that he was not wearing
cut-off jeans or a dirty shirt or carrying a newspaper. He says that after a
few miles in the truck, Leroy McCaffrey had produced a gun, saying something
like "nigger, this is the end of the ride for you", and Gunar Fulk had pulled
the truck over to the side of the road. Lonnie Johnson claims that he was
ordered out of the vehicle, made to lie face down on the ground, and that he
was kicked, racially abused and urinated upon. He was then ordered to stand up.
Johnson says that, although his memory of what happened next is not clear, he
remembers managing to wrestle the gun from Gunar Fulk and shooting him and then
Leroy McCaffrey, who was armed with a knife and had apparently begun to flee
the scene. Lonnie Johnson says that he then took the truck and fled to Austin.

At the trial, the defence had little or no evidence that the two teenagers were
the aggressors, or that the gun belonged to them rather than Johnson. However,
according to the appeal just filed, Lonnie Johnson’s lawyer claims that various
documents found in the Harris County District Attorney’s Office in two of four
boxes of evidence to which she was permitted access in early June 2007 are
exculpatory and yet were apparently not disclosed to the defence at the time of
the trial. The appeal argues that these documents provide evidence of
prosecutorial and investigative misconduct in the case; of the unreliability of
the ballistics testing done on the alleged murder weapon (the ballistics expert
who conducted the testing has been discredited in other cases); that the gun
may have belonged to one of the two teenagers; that DNA was taken from under
Fulk’s fingernails but that any test results had not been released to the
defence (any such testing, it is argued, could lend support to Johnson’s claim
that he struggled with Fulk and had been urinated on by McCaffrey); and that
the black man whom Tammy Durham had seen outside the store was an individual
other than Lonnie Johnson, potentially discrediting the prosecution’s theory of
Johnson having a gun in a newspaper. The appeal brief claims that the original
trial judge, now in private legal practice, has been approached and agreed that
such evidence could support Lonnie Johnson’s claim of self-defence.

In another case in June 2007, a judge on the Texas Court of Criminal Appeals
(TCCA) noted that the court had "repeatedly held that flight is evidence of a
circumstance from which an inference of guilt may be drawn." Lonnie Johnson’s
newly filed appeal to the TCCA provides evidence of the racially charged
climate and examples of racist violence in east Texas which could help to
explain his flight from the crime scene. In this climate, the appeal argues,
"common sense dictates that if a black person found themselves in a position
where they needed to explain the deaths of two white ‘boys’, they may be scared
that they would not survive long enough to exercise any due process rights
afforded them by the United States Constitution."

Amnesty International opposes all executions unconditionally. Today, 129
countries are abolitionist in law or practice. In contrast to this, the USA has
carried out 1,087 executions since resuming judicial killing in 1977. Texas
accounts for 397 of these executions. If Lonnie Johnson is executed, he would
become the 100th person convicted in Harris County to be put to death since
executions resumed in Texas in 1982.

The state of Texas is set to execute Lonnie Johnson on July 24, for the August 1990 murders of Gunar Nelson Fulk and Leroy McCaffrey.

The state of Texas should not execute Lonnie Johnson for his role in this crime. Executing Johnson would violate the right to life as declared in the Universal Declaration of Human rights and constitute the ultimate cruel, inhuman and degrading punishment. Furthermore, Johnson claims that he only killed Fulk and McCaffrey out of self-defense.

Defendant was charged with capital murder. The 183rd Judicial District Court, Harris County, J. Burnett, J., granted defendant's motion to suppress his postarrest written statement to police, and the state appealed. The Texarkana Court of Appeals, Grant, J., 843 S.W.2d 252, reversed and remanded. Both defendant and the state sought discretionary review. The Court of Criminal Appeals, Overstreet, J., held that attenuation doctrine is applicable to statutory prohibition against evidence “obtained” in violation of the law.
Affirmed.
Clinton, J., dissented.

OVERSTREET, Judge.
Appellee was indicted for the offense of capital murder, alleged to have occurred on or about August 15, 1990. The trial court granted his motion to suppress his written statement. The State appealed that suppression ruling. The Texarkana Court of Appeals reversed the suppression ruling and held that the statement is admissible. State v. Johnson, 843 S.W.2d 252 (Tex.App.-Texarkana 1992). Both appellee and the State appealed the court of appeals' ruling and sought discretionary review by this Court.

I. SUMMARY OF PERTINENT FACTS

The trial court conducted a hearing on appellee's suppression motion. Thereafter the trial court entered findings of fact and conclusions of law. Based upon that hearing and the trial court's fact-findings, the record reflects that on August 15, 1990, police discovered two bodies in Harris County. During the course of investigation, appellee emerged as a suspect. Information was received that he was possibly in Austin. Harris County investigators received assistance from police in Austin. On August 29, Austin investigators located appellee's girlfriend in Austin. She gave oral and written statements implicating appellee in the Harris County murders. Around midnight, her written statement was FAXed to Harris County investigators, who proceeded to try to obtain a warrant for appellee's arrest. In the meantime during the early morning hours of August 30, Austin investigators, in returning the girlfriend to her car located in the parking lot of her place of employment, observed appellee enter her car. Police moved in and arrested him there on that parking lot in Austin. At that time, Harris County investigators were still in the process of securing an arrest warrant; thus the arrest was made without a warrant. Subsequently, in response to police interrogation, appellee gave the written statement which is the subject of the suppression claim. The Harris County investigators were able to get an arrest warrant issued that morning, whereupon they then drove to Austin.FN1

FN1. More specifically, the record reflects that appellee was arrested at approximately 1:30 a.m. in Austin, and that the arrest warrant was signed at 3:50 a.m. in Harris County. One of the Harris County investigators testified that they then contacted one of the Austin investigators, and indicated that they remained in contact with Austin investigators via mobile phone on the way to Austin. The record also reflects that Appellee's written statement began at approximately 5:00 a.m. and was witnessed and signed at approximately 7:00 a.m.

II. THE STATE'S GROUND

As noted above, the State successfully appealed the trial court's order suppressing appellee's written statement. However, we granted one of the State's grounds for review challenging a portion of the Texarkana Court of Appeals' decision. Specifically, that ground asked “[w]hether the court of appeals misinterpreted the trial court's findings of fact by concluding that the trial court ‘made no finding that [appellee] burglarized [his girlfriend]'s car, and no such inference can be made from the facts that the trial court found.’ ” Particularly, the State takes issue with the court of appeals' statement that the trial “court did not indicate acceptance of anything that [the officer-in-question] testified to as fact.” State v. Johnson, 843 S.W.2d at 255. The State insists that such a conclusion arose from a misinterpretation of the trial court's findings of fact, including placing undue emphasis on the format of the findings, misreading a particular finding, and ignoring the legal conclusions. It adds that the format of the findings, which referenced the record and denoted which witnesses testified to which facts, “does not transmogrify the findings into something else.”

* * *

Johnson v. Quarterman, 204 Fed.Appx. 367 (5th Cir. 2006) (Habeas).

Background: State prisoner, who was convicted of capital murder, filed petition for a writ of habeas corpus, challenging his death sentence. The United States District Court for the Southern District of Texas denied petition. Prisoner sought certificate of appealability (COA).

Holdings: The Court of Appeals held that:
(1) even assuming prosecution knew that witness would fabricate his testimony or made a “deal” that resulted in his lies, state habeas court could have concluded that witness's testimony about prisoner's violent threats was not material under the Brady standard;
(2) district court's conclusion, that habeas review of claim regarding parole instruction was procedurally barred, was not debatable; and
(3) district court's disposition of state prisoner's claim that Texas sentencing scheme was unconstitutional was not debatable.
Request denied.

PER CURIAM:
Petitioner Lonnie Earl Johnson, convicted of capital murder in Texas and sentenced to death, requests this Court to issue a Certificate of Appealability (COA) pursuant to 28 U.S.C. § 2253(c)(2). Johnson challenges only his death sentence. He raises the following issues: (1) the prosecution suppressed material exculpatory evidence during the sentencing phase in violation of due process; (2) due process and equal protection required that his jury be instructed regarding parole laws; and (3) the Texas capital sentencing scheme's failure to require the prosecution to prove beyond a reasonable doubt future dangerousness and the absence of mitigation evidence violates due process and is in conflict with Supreme Court precedent. Finding that Johnson has not made a substantial showing of the denial of a constitutional right, we DENY the COA.

* * *

II. SUPPRESSION OF EVIDENCE

Johnson argues that the State failed to disclose exculpatory evidence relating to a State's witness who testified during the punishment phase. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The State has a duty to disclose evidence favorable to the accused that is material to guilt or punishment. See id. at 86-87, 83 S.Ct. at 1196-97. To establish this due process violation, an accused must show that the State withheld evidence, that the evidence was favorable, and that the evidence was material to the defense. Little v. Johnson, 162 F.3d 855, 861 (5th Cir.1998). “ Brady applies equally to evidence relevant to the credibility of a key witness in the state's case against a defendant.” Graves v. Dretke, 442 F.3d 334, 339 (5th Cir.2006) (citing Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)), cert. denied, --- U.S. ----, 127 S.Ct. 374, 166 L.Ed.2d 253 (2006). However, a new trial is not automatically required “whenever a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict.” Giglio, 405 U.S. at 154, 92 S.Ct. at 766 (quotation marks and citation omitted).

The standard for determining “materiality is a ‘reasonable probability’ of a different result.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). In assessing Brady materiality, “[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A ‘reasonable probability’ of a different result is accordingly shown when the [State's] evidentiary suppression ‘undermines confidence in the outcome of the trial.’ ” Id. (citation omitted).

During the punishment phase of Johnson's capital murder trial, the State called Donald Richardson to testify regarding violent threats Johnson made during a motorcycle trip from Tomball, Texas to Austin. Richardson testified that Johnson, who was armed with a gun, threatened to kill a man for his car. Subsequent to Johnson's conviction, Richardson recanted his trial testimony in an affidavit, stating that it was “all false” and he “consented to do this on the grounds that [the Harris County District Attorney's Office] would contact the Texas Board of Pardons and Parole and secure my early release from prison.”

During Johnson's state habeas proceedings, his attorney submitted a note that had been handwritten by Richardson to Diana Lynn Glaeser, one of the prosecutors at Johnson's trial. Apparently, Johnson's habeas attorney had discovered the following note in the prosecution file:

I need to see you as soon as possible, please come see me at the jail. I am at 1301 Franklin 7th Floor at the moment. I am having some problems that I need fixed right now. If you can't make it today please send someone else to assist me. Thank you.
Sincerely Donald Richardson
[address omitted]
P.S. Pertaining to Lonnie E. Johnson case.

With respect to the chronology of events, the note was written on October 10, 1994. The jury found Johnson guilty of both capital murders on November 14, 1994, and three days later the judge accepted the jury's punishment verdict of a death sentence. On January 30, 1995, the prosecutor informed Johnson's trial attorney that Richardson disavowed his testimony and wanted to “change his testimony, or words to that effect.”

During Johnson's state habeas proceedings, his counsel submitted an affidavit from Richardson, which provided as follows: “The statements I made at trial about Lonnie displaying a handgun and wanting to kill a motorist were all false. These were statements made to make the district attorney happy, so she would secure my early release from prison.”

The state habeas trial court made the ensuing findings of fact with respect to the instant claim based upon the “credible affidavit of Di Glaeser, the trial prosecutor in the primary case.” In 1990, Richardson contacted a law enforcement agency and provided information about Johnson. In October of 1990, Richardson spoke to an investigator with the Harris County District Attorney's Office and the information provided in that interview was consistent with Richardson's trial testimony. The “State's file was always open to the applicant's trial counsel, and that trial counsel went to the State's office to inspect the file.” The court further found:
that Donald Ray Richardson contacted the Harris County District Attorney's Office several times in the days leading up to the trial of the primary case; that Richardson was serving concurrent prison sentences for auto theft and burglary at the time of trial and was bench warranted from TDC to the Harris County Jail prior to trial; that Richardson indicated that he was having problems in the jail and wanted to be moved; that Glaeser passed this information on to *371 her investigator, who in turn contacted the county jail personnel; and that Richardson was ultimately moved within the jail.

Additionally, the court found that after Richardson was moved once within the jail, any other requests he made, including to be moved again, were ignored by the State. Richardson was informed that he would not receive any “deals” in exchange for his testimony against Johnson. The court expressly found that Glaeser neither made a deal with Richardson nor instructed or encouraged him to lie at trial.

The court also found credible the affidavits of Rob Kepple, an assistant district attorney who was involved in the pretrial proceedings, and D.C. Wells, an investigator for the Harris County District Attorney's office. Both affiants stated that Richardson received no deal or agreement in exchange for his testimony.
In a nutshell, the state habeas court found that the prosecution did not promise anything in exchange for Richardson's testimony. The only “benefit” Richardson received was being relocated away from Johnson within the jail. As the court below stated, the state habeas court's factual findings “destroyed Johnson's habeas claims.”

Johnson contends that he did not have a “fair opportunity to challenge the credibility of the prosecutors” and that “all credibility decisions were made from a cold record.” Prior to AEDPA, this Court has explained that “the presumption of correctness does not become inapplicable for the sole reason that no live evidentiary hearing has been held.” May v. Collins, 955 F.2d 299, 311 (5th Cir.1992) (emphasis in original). Thus, this challenge to the factual findings would have failed even pre-AEDPA. AEDPA “jettisoned all references to a ‘full and fair hearing’ from the presumption of correctness accorded state court findings of fact.” Valdez v. Cockrell, 274 F.3d 941, 949 (5th Cir.2001). “The presumption of correctness erected in its place at § 2254(e)(1), now simply provides that unless the petitioner can rebut the findings of fact through clear and convincing evidence, those findings of fact are presumed to be correct.” Id. Johnson has failed to marshal clear and convincing evidence to rebut the presumption of correctness afforded the state court's findings of fact.

Moreover, as the district court concluded, “[e]ven if the prosecution knew that Richardson would fabricate his testimony or made a ‘deal’ that resulted in his lies-and Johnson has not made either showing-the evidence against Johnson would allow the state habeas court to conclude that Richardson's testimony was not material under the Brady standard.” “The materiality of Brady material depends almost entirely on the value of the evidence relative to the other evidence mustered by the state.” Edmond v. Collins, 8 F.3d 290, 293 (5th Cir.1993) (internal quotation marks and citation omitted). Johnson does not dispute the state court's finding that “there were twenty-three punishment phase witnesses other than Donald Richardson who testified concerning at least nine incidents of actual violence by [Johnson] as well as many other incidents of threatened violence.” Moreover, numerous witnesses (both prison guards and inmates) testified to Johnson's continuing violent behavior after his incarceration for the instant capital murders. In view of the other evidence of Johnson's future dangerousness, combined with the instant execution-style murders of the two teenage boys who apparently were attempting to help Johnson with his feigned car trouble, we conclude that there is no reasonable probability that disclosure of the allegedly suppressed evidence would have resulted in a different outcome at sentencing. Accordingly, because we conclude that jurists of reason would not find the district court's disposition of this claim debatable, we deny a COA.

III. PAROLE INSTRUCTION

Johnson next contends his due process and equal protection rights require that a jury be instructed with respect to parole laws and the “implication of a life sentence.” Johnson did not request that the jury be so instructed, and the state habeas court found that the claim was procedurally barred. The district court therefore found that it was procedurally barred from considering this claim.

Johnson acknowledges that no objection was made. Nonetheless, relying on Texas state law, he argues that he was not required to object based on the “right not recognized” exception. When faced with this precise argument, this Court has explained that “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Rosales v. Cockrell, 48 Fed.Appx. 103 (5th Cir.2002) (unpublished) (quoting Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)). As such, the district court's conclusion that habeas review of Johnson's claim is procedurally barred is not debatable among reasonable jurists. Johnson has not demonstrated either cause or prejudice, or that imposition of the bar would constitute a miscarriage of justice. He thus has failed to show that jurists of reason would find the district court's procedural bar debatable.

In any event, our precedent squarely precludes Johnson from making a substantial showing regarding the denial of due process or equal protection rights with regard to this claim. See, e.g., Coleman v. Quarterman, 456 F.3d 537, 544-45 (5th Cir.2006) (rejecting claim that the equal protection clause is violated by the discretionary ability of Texas trial judges to instruct a jury regarding a defendant's parole eligibility); Miller v. Johnson, 200 F.3d 274, 290 (5th Cir.2000) (rejecting claim that due process required parole instruction regarding petitioner's parole eligibility). The district court's disposition of this claim is not debatable, and thus, we deny a COA.

IV. UNCONSTITUTIONAL SENTENCING SCHEME

In his final claim, Johnson argues that the Texas sentencing scheme is “unconstitutional because there is no requirement that the State prove beyond a reasonable doubt that the answers to the special issues presented to the jury must be answered ‘yes.’ ” In support of this argument, Johnson principally relies on United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). The district court denied relief, stating, inter alia, that it could not grant relief without creating a new rule in violation of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

With respect to Johnson's reliance on Booker and Blakely, “[t]his argument is foreclosed before this court by United States v. Gentry, 432 F.3d 600, 605 (5th Cir.2005), and In re Elwood, 408 F.3d 211, 212-13 (5th Cir.2005) (per curiam), both of which hold that the Blakely/Booker line of *373 cases does not apply retroactively to cases on collateral review.” United States v. Edwards, 442 F.3d 258, 268 (5th Cir.2006).FN1 With respect to his reliance on Ring, the Supreme Court has explicitly held that “ Ring announced a new procedural rule that does not apply retroactively to cases already final on direct review.” Schriro v. Summerlin, 542 U.S. 348, 358, 124 S.Ct. 2519, 2526, 159 L.Ed.2d 442 (2004).FN2 Moreover, this Court recently rejected the claim that the State is constitutionally required to prove beyond a reasonable doubt the absence of mitigating circumstances. Granados v. Quarterman, 455 F.3d 529, 536-37 (5th Cir.), petition for cert. filed (Sept. 28, 2006)(NO. 06-6932). The district court's disposition of this claim is not debatable and thus, we deny a COA.

FN1. Although Edwards involved a section 2255 motion, its holding is applicable to the instant section 2254 proceeding. See United States v. Orozco-Ramirez, 211 F.3d 862, 864 n. 4 (5th Cir.2000). “ ‘Because of the similarity of the actions under sections 2254 and 2255, they have traditionally been read in pari materia where the context does not indicate that would be improper.’ ” Id. (quoting United States v. Flores, 135 F.3d 1000, 1002 n. 7 (5th Cir.1998)).

FN2. Johnson also cites Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), in which the Supreme Court held that an instruction defining “reasonable doubt” did not violate the due process clause. We agree with the district court's conclusion that Victor is inapposite because Johnson is not challenging any definition of “reasonable doubt” contained in the jury instructions.